This past weekend, Donald Trump claimed that Mike Pence, as vice president, had the power to change the outcome of the 2020 election. Trump said: “Unfortunately, [Pence] didn’t exercise that power, he could have overturned the Election.”
This claim is wrong and disturbing. It’s wrong because, as discussed below, once the states submit their slates of electors in compliance with state law and with no alternative slate authorized by an empowered state body, the vice president has no authority to reject the electors or otherwise “overturn” the outcome of the election.
Trump argues that by “desperately trying to pass legislation” to amend the Electoral Count Act of 1887 (ECA), “the Democrats and RINO Republicans” are admitting “that Mike Pence did have the right to change the outcome, and now they want to take that right away.” The argument lacks merit.
Congress passed the ECA in response to the disputed election of 1876. That was the election in which Congress was presented with two slates of electors by three southern states. The outcome of the election turned on which slates were recognized, plus the resolution of a dispute over one Oregon elector.
The matter wasn’t resolved by Congress. It was settled by a special commission and, effectively, by the decision of one Supreme Court Justice, Joseph Bradley.
Seeking to avoid future farces like this, Congress enacted the ECA. It adopts the following procedure, as characterized by the editors of National Review:
(1) election contests are handled in the first instance by state courts and state elections officials (a process that, due to the growth of federal voting-rights laws, today includes more resort to federal courts); (2) after those contests are exhausted, the winning electors are certified by the governor of the state; (3) the vice president opens and counts the votes, but the House and Senate each vote to resolve any disputed slates of electors; and (4) if a state delivers just one slate certified by the governor by a “safe harbor” deadline, that slate is “conclusive.”
Unfortunately, the ECA’s language is less clear than it could be. In particular, it does not explicitly state what the vice president cannot do. Hence the drive, to which Trump referred, to state the procedures more clearly. Dan McLaughlin discusses the specifics of that drive here.
But even without clarification, there is no good argument that, in the absence of a competing slate of electors authorized by an arm of a state government, Mike Pence could have stopped Joe Biden from being declared the winner.
The desire to state explicitly that the vice president cannot do certain things is not an admission that he currently has the power to do them. As Andy McCarthy says:
Proponents of amending the ECA to state more emphatically that the vice president has no authority to discount votes are not conceding that, absent such an amendment, the vice president has this authority. They are saying that, since a former president and his loyalists took this indefensible position in connection with what is now an infamous event, we should be as clear as we can be that this scheme is invalid — we should do things we are in a position to do, even if they are just gestures, to prevent a future January 6 debacle.
This passage from McCarthy helps show why Trump’s insistence that Mike Pence could have overturned the election is disturbing. Trump took an indefensible position while still president and it led to a riot inside the Capitol.
Presidents sometimes take indefensible positions, including on important matters of law. But doing so for the purposes of overturning an election and retaining power poses an obvious threat to democracy.
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